Frequently Asked Questions

Can I get a quick, easy divorce?

Probably not, unless you haven't known your spouse very long and you don't own anything. Otherwise, divorce is a very difficult, emotional process. It is like watching a loved one's long, lingering death. And when the disease proves fatal, your ex is still living in the world, but no longer in your world. That can be either infuriating or sad, or probably both. It won't be either easy or quick. But there are ways to make it less painful and lingering.

I need a barracuda to represent me in my divorce. Can you do that?

This question makes no sense in the context of divorce. How would a barracuda improve divorce? You and your spouse have only one pile of assets, and one set of children. If you introduce a man-eating fish into the family, the fish will devour everything and nothing will be left for you. Is that what you want?

So if I don't need a barracuda, what do I need?

Ideally, you need Mary Poppins. Someone who won't make you more angry and depressed. Someone who is good at solving problems. Someone who is good at getting people to solve problems together rather than someone who likes to fight. That would be the ideal divorce lawyer.

We just want an amicable divorce. We agree about everything. Why would I need a lawyer?

Your story makes no sense. If you agree about everything, why do you need a divorce? There is hurt and distrust lurking under every divorce. If you could trust each other absolutely, you would not be divorcing. Spouses naturally want to take advice from each other and rely on each other. But once the fundamental glue in your relationship has dissolved, you can't trust your spouse's advice. You need someone neutral and knowledgeable, whose advice you can rely on. Maybe that is your mother; or it might be a lawyer.

I am well-educated. I can do my own divorce as well as a lawyer, can't I?

You should only fix your own car if you know something about auto mechanics. Otherwise, if you expect the car to run you should pay an expert. Your divorce is your whole future — you owe it at least as much as you owe your car. And even if you know a lot of law, you still can't be objective and calm about your own life hanging in the balance. You would be better off with a trained professional.

I have to be honest with the kids about why we are divorcing, don't I?

Your first mistake is asking your lawyer this question, rather than a mental health professional. But since most people do ask their lawyers, the answer is no.

Reason #1: how you feel about your spouse has nothing to do with how the kids feel about him. They don't care if he makes eyes at other women whenever you go out together, and there is no reason why they should.

Reason #2: the kids can't divorce him, and probably don't want to. The kids love both of you, and if you force them to take sides they will blame you sooner or later.

I have sent my spouse dissolution papers to sign many times. She either won't sign them, or she makes changes I can't accept, or she just ignores them. How will I ever get divorced?

The dissolution process in Alaska is for people who are able to agree on absolutely everything. Also, the dissolution forms are not really friendly to complicated situations, so even if you agreed on everything, you might not be able to fit your agreement into the forms. If you have tried many times and cannot get an agreement, you need to try something else. You could consult a lawyer, or you could go on the court's website and download the do-it-yourself forms. If your divorce is complicated, or contentious, or simply confusing, you should probably start with a lawyer. A lawyer can tell you if you might be able to do it yourself.

I want to have 50/50 custody of the kids in my divorce so that neither one of us will have to pay child support. Is this possible?

I never like to hear this question. Have you asked yourself what 50/50 means, and whether it would be good for your kids? Perhaps you have. But even if "50/50" would work for your kids, it does not mean that no one pays child support unless the parents have equal incomes. If the parents have unequal incomes, the higher earning parent will have to pay some support.

I pay support to my ex-spouse. I think he should have to use the support to buy the kids clothes, books, sporting equipment, and all that. He says I still have to buy things for the kids even though I pay support. Do I?

The short answer is yes. The child support formula (used to calculate your support based on your income) assumes that each parent provides things for the children when the children are with that parent. This means that both parents have to buy some clothes, and some food, and pay for some school lunches.

Can I modify my current custody and visitation order?

We get a lot of calls from people who are unhappy with their existing custody and visitation orders. Either the order does not reflect what is really happening, the schedule is not working, or there is no schedule at all and the parties are having constant arguments over visitation. The law allows you to ask the court to modify a custody or visitation order at any time, but you must to prove a “substantial change of circumstances.” What does this mean? If one parent is planning to leave the state, with or without the children, this is automatically considered a “substantial change.” The court will determine whether the children should go or stay and what the new visitation will be, if the parents can’t agree. On the other hand, some people have orders that do not specify visitation at all, but say things like “liberal visitation” or “visitation as arranged between the parents.” Orders like this are impossible to enforce, so if you are not getting visitation, you need to ask the court to modify the order to specify what you get. If things have changed because, for example, the children are older the schedule was designed for preschoolers, you can ask the court to change the schedule. Finally, if you think the other parent is harming the children somehow, you can move to modify the custody and/or the visitation. But remember that the change has to be substantial; you will waste your time if you go to court over trivial issues like haircuts or footwear.

Before going to court, or hiring a lawyer to go to court for you, give serious thought to what change you want, and what would work both for you and for the children. The court can only change an order if it is in the “best interests of the children.” You might save time and money by consulting with a lawyer before you decide whether to ask for a modification, even if you decide to do that actual work yourself.

In a custody case, what does it mean if a parent has a "history of domestic violence"?

The Alaska statute that governs custody was amended in 2004 to strengthen the protection of children from domestic violence. Because the change is so new, attorneys and judges are still confused about what exactly the statute means. Two recent Alaska Supreme Court opinions have helped to clarify it, but there are still many unanswered questions.

The statute applies to parents who have a “history of domestic violence.” That is defined to mean one serious incident involving physical injury, or more than one other type of incident. Domestic violence is defined elsewhere in the statutes, and includes things like harassment and stalking as well as actual hitting. It is not necessary that the parent ever have been charged with a crime, or even that a domestic violence restraining order have been granted in the past. If the court finds a parent to have a “history,” the court has to restrict that person to supervised visits until the person completes treatment. A person with a “history” cannot be awarded joint or sole legal or physical custody. There are some circumstances under which the court can allow unsupervised visits or even custody, but it must make certain findings if it does.

This change in the statute really raises the stakes in situations where there has been domestic violence, either in the current relationship, or even in a prior relationship. Sometimes both parents have a “history” of violence, often against each other. In these situations, the court is supposed to pick the less dangerous parent, or even award custody to a nonparent. The change in the statute was designed to acknowledge the research that shows that domestic violence is harmful to children even when it is not directed at the children. It was intended to force courts to give careful consideration of the parents’ histories of domestic violence when custody orders are made.

Why should I hire an attorney for my divorce; can't we just go to mediation?

This is a question often asked by people who are thinking of a divorce. Mediation is a wonderful tool that can save money and minimize the conflict that is inevitably involved in getting a divorce. However, going to mediation without understanding your legal rights first can be very dangerous. A competent mediator will not give either person legal advice about his or her rights. A mediator cannot tell you if a settlement is a good idea for you. So before you go to mediation, you should see a lawyer first, so that you understand what your rights are, and what you might be giving up. Consulting a lawyer does not mean you have to involve the lawyer in the mediation, nor does it mean you will end up in court. It simply means that you will go to mediation with your eyes open.

The kinds of things a lawyer can help you understand before mediation include: What property is considered marital property that the court will divide? What is the likelihood of getting, or being ordered to pay, alimony? How likely is it that a court would order joint custody of the children? What does the law say about child support? If you do not know the answers to these questions, you could end up with a divorce agreement that either gives away things you did not even know you could ask for, or leave problems unresolved that will return to bother you later.

It is also very important that you have all the documents you need before you go to mediation. If you are not sure what property or debts you have, you will not be able to get a good agreement. You should not simply rely on your spouse to tell you what you need to know. Because you are getting divorced, each person has goals and desires that are not necessarily the other spouse’s goals and desires. After all, if you agreed on everything, you probably would not be divorcing.

What is the difference between collaborative practice and mediation?

The most important difference between collaborative practice and mediation is that in the collaborative process, you have your own lawyer to advise and support you.  A mediator cannot give you legal advice, and cannot assist you in reaching your goals.  The mediator is a neutral, whose job is to facilitate an agreement.  Many people seeking a divorce or addressing some other family problem do not have the legal knowledge to use a mediator without the help of a lawyer, and many are too distraught and upset to participate successfully in mediation.  If your issues are complicated or particularly emotional, collaborative law might be a better option for you.

Should I marry my same-sex partner?

Same-sex marriage is legal and recognized in all fifty states since the United States Supreme Court decision in Obergefell v. Hodges was decided on June 26, 2015.  Same-sex married couples are entitled to all the rights and benefits to which any married couples is legally entitled, both under state and federal law.  You may be entitled to various benefits retroactively, depending on the circumstances.  Married people enjoy various legal privileges that unmarried couples can only get through contracts or other legal documents, and in some instances they may not be able to get them at all.  These include inheritance by intestacy (without a will), joint tax filings, spousal benefits in various public and private benefit programs, access to step-parent adoption, etc.  There may also be financial costs to married couples, such as the so-called federal “marriage tax penalty.”  Whether it is a good idea, legally or financially, to marry your partner is a question you should put to a lawyer and an accountant.  Whether you want to marry, of course, is a question only you can answer. Under no circumstances should you marry your spouse again, if you are already married in any state or country.  Celebrating your marriage twice, even if it is possible, will only create problems in the long run.

What do I need to think about if I want to change custody of my children?

In custody cases it is not unusual for a parent to agree to the entry of a custody order they’re not all that happy with because they think that it will be simple enough to change later on.   This isn’t necessarily so.

To change custody so that a new court order is issued, the parent that wants to change it must show two things.  The first is that there has been a significant change in circumstances since the last custody order was entered.  The court can be fairly strict as to what amounts to a significant change in circumstances and what doesn’t.  For instance, a change of circumstances the court will consider does not include situations where a parent has simply changed his/her mind and does not like the current custody situation anymore; situations where the child simply says he/she wants to live with that parent; or situations where the parties previously agreed between themselves that custody would somehow change later on.  Some examples of changes in circumstances the court will pay attention to are things like one parent moving out of the state or community; one parent having developed legal problems or substance abuse issues that are bad enough to interfere with his/her parenting responsibilities; or one parent being with a partner who abuses substances or abuses the parent.

If the parent meets the first criteria, the second thing a parent wanting to change custody must establish is that the new custody plan they are offering to the court meets the child’s best interests.  Parents often assume that if they get over the first hurdle, that custody will in fact change.  That isn’t necessarily so.  Courts can and do find that even when it agrees that circumstances have changed enough for it to reconsider custody, the current custody order is still meeting the child’s best interests.  For instance, if the change in circumstance was substance abuse related, the court will look to see if that parent is in treatment or otherwise has the issue under control.  It is not unheard of for parents like these to defeat a motion to change custody if they “rehabilitate” themselves while the attempt to change custody is going on in the court.  These kinds of things can be very frustrating for the parent wanting to change custody.

In a nutshell, the court takes its orders regarding custody very seriously, and does not review requests for changes in them lightly if the parents do not agree.  Every parent preparing to enter into an agreement about custody that is going to be made an order of the court needs to think about the terms of the agreement they are making, whether they can really live with it, the effect it will have on the child and on them in the future; and whether the agreement will wear well practically and in other ways.  If not, you may want to think again about going ahead with having the court enter that order.

Should I get a prenuptial agreement?

A prenuptial agreement is a contract about what will happen with property, earnings, support and other issues if your planned marriage ends in divorce or death.  A prenuptial agreement is a very good idea if one or both partners have personal wealth before the marriage, if either partner has children before the marriage, or if the partners want to establish a way of dealing with their assets that is different than what the law would impose.  For an agreement to be valid and enforceable later, at death or divorce when it really matters, BOTH partners have to consult lawyers.  An agreement drafted by one partner’s lawyer, and not reviewed by a lawyer for the other, is probably not worth entering into.  Also, both partners have to be willing to give the other full disclosure of assets and debts; without this the agreement is probably worthless.

Obtaining a prenuptial agreement need not be expensive and can pay for itself many times over.  Also, negotiating an agreement is a perfect subject for the collaborative process.  With collaborative lawyers, the soon-to-be married partners can meet together with both lawyers in a civilized and friendly environment to work out the agreement.

Many people fear that entering into a prenuptial agreement will cast a cloud over the upcoming marriage, implying that the marriage won’t last and that divorce is inevitable.  This fear is misplaced.  Talking about finances before the marriage is usually very healthy for the relationship, and may actually prevent problems later on because the partners talk about their financial assumptions in advance.

Consulting a lawyer about a prenuptial agreement is a very small investment in something that could prove extremely valuable later, even if the parties never divorce and the marriage endures the test of time.

Can the collaborative approach be used for problems other than divorce?

The collaborative approach (for more information on this, go to www.alaskacollaborative.org) is suitable for many legal issues in addition to divorce.  Family legal issues are very sensitive and personal.  Many - if not most - clients would like to address their problems in a way that is less public and less confrontational than going to court.  The collaborative process meets this need.  It can be used to negotiate pre-and post-nuptial agreements; child support; child custody modifications; college support issues; and most other family legal problems you may face.  It is also very useful for negotiating relationship contracts and break-ups for couples who are not legally married.  If you find yourself in any of these situations, we would be happy to try to help you.

What are unbundled services?

“Unbundled services” is a relatively new term in the legal field.  It means, basically, hiring a lawyer to do parts of your case, without hiring the lawyer to represent you in all respects of an entire case.  In practice, this sometimes means hiring the lawyer to represent you in one piece of your case, such as establishing child support, when you have represented yourself in a divorce or custody case.  It might mean hiring a lawyer to draft a difficult legal pleading, like a Qualified Domestic Relations Order (QDRO) for splitting retirement.  It can also mean paying the lawyer to help you draft your own pleadings, or to prepare you to represent yourself at a trial or hearing.

Mendel Colbert & Associates, Inc. is one of a number of local firms that offer unbundled services in family matters.  You can get a much better result in many cases if you hire a lawyer to help you represent yourself, since the legal system is extremely complex and confusing for a layperson.  It will also be much less expensive than hiring a lawyer to do everything in your case.  Some things you should never do yourself, like drafting a QDRO or a military retirement order.

The best way to get satisfactory legal services is to be straightforward with your lawyer about what help you want and can afford.  If you want unbundled services, talk over with your lawyer what he/she can do for you, and what you can do for yourself to get the best result.  Some cases are just too complex or high-risk for you to do yourself.  This is also something you should discuss with your lawyer.

Why shouldn’t I just hire a mediator?

Clients often ask us, why shouldn’t they just hire a mediator to do their divorce or other family matter?  Why should they consult a lawyer in addition to or instead of a mediator?  Mediation is often a good way to resolve a family matter such as divorce.  However, a mediator is a neutral person and is not allowed to give legal advice to either party.  The mediator’s job is to find an area of agreement.  If you are unaware of your legal rights — or just do not understand them — you might agree to something that would be bad for you.  Or you might miss a chance to agree to something you had not even thought of.  You will nearly always get a better end result if you consult a lawyer before you go to mediation.  The lawyer can help you figure out whether your issue is appropriate for mediation, or what preparation you ought to do before mediation, or if you should bring a lawyer to mediation with you.  Consulting a lawyer is not a commitment to go to court.  In fact, a skilled lawyer can help you to avoid court.

I have heard that there is something new called a Parenting Coordinator. Is that something that would help me with my custody problems?

There is something new called a Parenting Coordinator.  If you have a court order that establishes a custody or parenting plan, but you have had serious, continuing problems making joint decisions with the other parent, or coordinating visits, or if you have gone to court multiple times trying to fix your custody situation, this might be the solution for you.  A Parenting Coordinator (PC) is appointed by the court to make decision for parents when they are unable to do so.  The person is like a referee.  The PC’s decisions must be followed unless and until one of the parents gets the court to overrule to the decision.  The PC may either be free through the Court System, if the parties qualify financially, or paid privately.  A PC is a very efficient and effective method of resolving constant conflict between parents.  The PC may also be able to help the parents learn better skills at communicating and coming to joint decisions.

I don’t want judges and lawyers deciding how to raise my children. Is there another way to work out our custody agreement that will respect my values and choices?

There are several ways.  You are wise not to trust judges to parent your children.  It is not what they are trained for, and they are unlikely to do a good job.  One solution is to locate a therapist or counselor who specializes in helping parents work out a parenting plan by working together.  A mental health professional can help you both better understand your children’s needs, and each other’s point of view.  If you choose this option, it is best if you also consult with an attorney who can review your options with you, and who will review the agreement when it is worked out to make sure it will work.  You could also choose collaborative divorce, which is explained elsewhere on this website.  You can hire a private mediator to mediate your agreement, but you should be sure that the mediator understands all the practical issues in custody cases.  Again, you should also consult with your own lawyer before and after mediation.  A mediator cannot give legal advice to either side, so it is important to have someone tell you what your rights and legal options are.  Finally, you can use your lawyer to try to work out an agreement with the other party and his or her lawyer.  This may not be the best option, but it is certainly better than going to court.  Mendel Colbert can help you navigate any of these options.  We are committed to empowering parents to make custody agreements that reflect their values and needs.

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